February 26, 2011

Here is part of a presentation made at the University of Wisconsin Law School on February 22, 2011 by Donald Downs, a UW political science professor:

Downs is very briefly raising the issue of whether it should be considered viewpoint discrimination for the protesters at the state capitol to be permitted to post signs and sleep overnight when other groups are not going to be given the same treatment.

The case he mentions is Clark v. Community for Creative Nonviolence, in which the Supreme Court upheld a neutral rule that prohibited everyone from sleeping in the park. In that case, protesters argued that they had a right to special treatment, because they were sleeping as a form of expression, to say something about the plight of the homeless.

In the current Wisconsin situation, the protesters are being allowed to do many, many things that ordinarily no one does. It's hard to imagine how the state could operate in the future if other groups were given equal treatment and permitted to stay overnight for days on end, to post thousands of signs all over the historic marble walls and pillars, to prop and post signs on the monuments, to bang drums and use a bullhorn in the rotunda to give speeches and lead chants all day long for days on end. Tell me then, what will happen when the next protester comes along and the next and the next? Hasn't the state opened the Capitol as a free speech forum in which viewpoint discrimination will be forbidden under the First Amendment?

But, you might say, the Republicans hold the political majority and the special treatment is going to their opponents. To that I say: So what? If you discriminate in favor of your political opponents, it's still viewpoint discrimination. It's interesting to speculate about why the Republicans are permitting such a giant extra helping of free speech to their opponents. Perhaps it is so they can say, when their friends show up on some later occasion — some Tea Party group? — that they must give them the same access.

But I don't believe they want that. The Capitol has for years and years been a solemn place. For 25 years, I have brought visitors there and walked slowly through the beautiful spaces looking at the different colored and patterned marble on the walls and gazing with awe up into the dome. This is the Capitol Wisconsinites know and treasure. It can't become an all-purpose free-speech forum.

At Christmastime, there is a big tree in the rotunda. The Freedom from Religion Foundation doesn't like that. This week's anti-Scott Walker people are banging on drywall buckets and chanting "This is what democracy looks like." How about a hundred atheists in the rotunda for a week in December banging on buckets and chanting "This is what stupidity looks like"? (Okay, there's a conlaw exam for you. Submit your answers and I'll grade.)

I think the Republicans are simply refraining from confrontation and waiting for the protesters to get tired and leave or — on their own — to upset the ordinary people around the state. Any attempt to sweep them out or pull down their signs might make them look sympathetic or generate an air of martyrdom, and so, I assume, it has seemed to be the wiser path to leave them alone.

UPDATE: At the Capitol today (2/26/11) I talked to the police enough to get some insight into what the legal theory is. I've got a lot of video and photographs to process this evening, so I will put off writing more about this until tomorrow.

UPDATE 2: Prof. Downs emails:

Ann raises points that merit serious First Amendment attention. In my talk last Wednesday, I raised the concern about viewpoint discrimination, but said it was outweighed at that point by public necessity. But the necessity position loses force as time passes, and police are able to adjust to the situation. Regardless of where one stands on this particular issue, it is never a valid or good thing if government grants special First Amendment rights to one group or set of protesters that it would not extend to all other groups. This is bedrock First Amendment principle based on a long history of experience. And police need to maintain a position of absolute neutrality in such matters. And it doesn't matter how peaceful or respectful a group might be behaving, for such otherwise laudatory behavior does not entitle anyone to special treatement under the law. The First Amendment either applies equally to everyone, or it is subject to political barter.

But are the people elsewhere in the state, as, for example, in Appleton where I live, going to be more annoyed at the protesters or at the Republicans who have tolerated this obscene occupation of the capitol too long? It is long past time for these people to go.

This state of affairs is soooo typical of Republicans in general and demonstrative of the currently existing double-standards in media treatment as between the left and the right. It's a win-win situation for the left. OF COURSE the media would crucify the GOP should they forcibly remove the demonstrators as being "anti-free speech" etc., while continuing to allow their presence only serves to obstruct the workings of a legitimately elected republican-majority government. The "wiser path" is simply a tribute to the extent to which the right is still held in thrall to a leftist dominated media-inspired "narrative."

"A more interesting question to me: When will the Gov. cut off the money? Or has he already? When will he cut off the money that allows the protesters to get paid for skipping work?"

The teachers have gone back to work. The question is: who are those people in the Capitol? I'd like to see some reporting on that! Do you know? Are they from Wisconsin? Are they radical politicos? Are they UW students and TAs?

4. Ask them when they plan to retire...and to where? It'd be a shame to have that tax-free benefit plan being paid to someone out-of-state, who moved there in order to continue to get their retirement cost-free.

5. Ask them if you can pull your kid out of school if you don't like their latest test score.. and if you, too, can demand something your kid has not earned.

People do not like to sleep on marble floors indefinitely. They're there for the drama. Opposition increases the drama and hence their pleasure in being there. Put a few overflowing port-a-potties in their midst. Make it the wrong kind of drama.

As an outsider I see that Wisconsinites are a very patient kind. They really do accept well all of this craziness and stalking being done to them by the Commissars of Education. They will get through this correction phase in the Public Union's power grab and go on. In Georgia we have our share of Veteran's memorials to courageous Wisconsin boys. A big one is at Chickamauga, and smaller ones are at Kennesaw Mountain and Andersonville marking where they fought and died.

The question is: who are those people in the Capitol? I'd like to see some reporting on that! Do you know? Are they from Wisconsin? Are they radical politicos? Are they UW students and TAs?

My friend Mal annually works the WIAA state hockey tournament, which starts this Thursday and goes through the weekend. He usually sleeps in the back of his truck in the parking lot of the Alliant Energy Center, to save on motel costs, and because they work long hours keeping an eye on the ice.

This morning he mentioned he's considering heading down early to help install and paint the ice, and when I mentioned it was pretty cold to be camping days on end in the back of his truck, he told me he figured this year he'd just stay warm with the protestors in the Capitol.

He was kidding... I think. But maybe some of those folk currently bunking there are just saving on Madison hotel rooms?

(Again, I'm just hoping there's no public fornication going on. He's a decent guy, but from a kinda sheltered rural area, and I'd hate for him to be tempted... Kidding.)

Wouldn't there be a credible threat of violence if these protestors were removed? And doesn't that justify the government in permitting their behavior, while refusing to permit similar behavior by those (e.g., tea partiers) who don't make credible threats of violence? very like the bus advertisement case Prof. Volokh discussed a day or two ago.

There are ways to deal with unsophisticated, or stupid, people. I spent years at the County Hospital in Los Angeles during my training. We would encounter patients who refused to leave when they were discharged, especially in winter. We simply changed their diet to clear liquids. That's broth and jello and juice. After a day or two, they left.

Turn off the heat in the capitol on Friday night. Let's see what's there Monday morning when it is turned back on.

Wouldn't there be a credible threat of violence if these protestors were removed? And doesn't that justify the government in permitting their behavior, while refusing to permit similar behavior by those (e.g., tea partiers) who don't make credible threats of violence?

Like taping a "Take Me Hostage" sign on your back. If the protest can create a credible threat of violence, it won't be dispersed? Why not just lower the American flag instead? Saves time.

very like the bus advertisement case Prof. Volokh discussed a day or two ago.

When has there ever been comparable demonstrations, in duration and truant illegitimacy, for any conservative or libertarian cause? I cannot think of any, in my lifetime, anywhere in the US. But avoidance of viewpoint discrimination rests on the assumption that balance and fairness are possible, that both sides wish to engage in the same behavior and can be held to the same rules.

Therefore I don’t think that viewpoint discrimination is applicable in cases like this because the behavior is specific to the left-wing viewpoint. To deny them the right to behave this way is to deny them an essential element of their identity.

This couldn't be more off-topic, but anyone remember when we were discussing the MASSIVE BJ Raji? Well, that family has some serious genes. His brother, Corey Raji, just had a great game for BC basketball (17 points, 8 rebounds). Those two must've been absolute terrors when they were playing with the kids in the neighborhood.

By Robert Costa Madison, Wis. – The “occupation” of the state capitol by labor activists will soon come to an end, at least for one evening. According to the Milwaukee Journal Sentinel, state police will force protesters to leave the marble halls by 4 p.m. Sunday. The building will reopen Monday morning. “We are closing the capitol for a short period of time for public health reasons, as well as for general building maintenance,” said the capitol police chief in a statement.

They do that at the state college where I work - at the close of business, the heat goes off, and is not turned on until the facilities crew comes in before the start of business. It saves taxpayer money.

No reason the taxpayers should be paying even more just to accommodate a bunch of spoiled brats that are there because they want more form taxpayers.

One of things to look at is how these protests are creating victims. The people of Wisconsin have become victims of the protesters abuse of the capitol building and as such have added a burden to the taxpayers for cleanup. Protesters love to create victims, look at their signs and speech. Their language is controlling, manipulative and abusive. This creates the illusion of control and the protesters feed on this illusion and when confronted they even become more abusive.

Next thing to look at is the poor me pity party they use to manipulate the situation to gain their ends. Once again by playing the roll of a victim they creating the illusion of control.

Within this can be seen the bully mentality and it becomes a dangerous ploy on the part of the protesters to victimize people for it has a tendency to backfire and sometimes it is violent. Most people do not like to be victims and they do not like to be portrayed as victims.

So far the one side has been civil but for how long. When will the backlash explode. Hopefully it will be at the polls again and not in the streets. I have ugly memories from Vietnam and the violent protests. some of them turned ugly and there were other riots during that era. Hopefully it does not build in to a boiler.

That is an admission that the Republicans are in accord with the founder's intent that disputes be settled through the mechanism of elections and vigorous but civil legislative give and take...and Democrats aren't.

It would seem if they let one protest group do this, they'd have to let all.

I've seen nothing to suggest that they don't allow all protest (or even counter-protest) groups to do this. Maybe the issue in't that those in opposition to these protesters (or who wish to protest for/against something else) aren't allowed to sleep there, etc, but that they don't choose to.

I mean, if Ann & Meade wanted to spend all night, every night defending the memorials and statues against signage, I'm sure no one from the government would prevent them from doing so... Their choosing not to spend all night, every night there isn't the same as their being prevented from doing so. The doors swing open the same way for counter-protesters as they do for protesters...

As long as that's the case, I fail to see how any person or idealogical viewpoint is being discriminated against.

Bush 43 pointed out that the day after 9/11 the quasi permanent protest encampment just outside the White House grounds was gone.. They came back later.. but it is obvious that no polite request will get them to leave..

There is a supreme court approved test called "Shock-the-Conscience Test" that determines whether a state agent's actions fall outside the standards of civilized decency.

What do you do when its another citizens action that is shocking the conscience?

You petition your legislators and the governor.. you organize counter-demonstrations.

The cops won't do their jobs! Up ahead, after this is over, I hope Scott Walker takes the head of his police department over the coals for failure to see his department WILLING to remove these protesters.

I noticed he adds "But I don't think that would really hold in this case" in reference to other groups being able to claim discrimination. It would be interesting to know why he thinks union supporters are so special.

Your argument is that they should not allow the protests now because they MIGHT not allow similar protest in the future?

No, the point is that by not enforcing viewpoint neutral rules now -- such as posted building hours, maybe fire department occupancy limits, perhaps others -- they've opened themselves up to viewpoint discrimination suits if they enforce those rules in the future.

And as the cited case indicates, they risk those suits even if they enforce the rules against non-protesters. Now that they have established that someone can sleep in the capitol, anyone can sleep in the capitol. It just became Madison's new unofficial homeless shelter.

And if the homeless of Madison are anything like the homeless in Seattle, people are gonna show up for work in the morning always wondering if there will be a big pile of "Surprise!" in front of their office doors.

And if the homeless of Madison are anything like the homeless in Seattle, people are gonna show up for work in the morning always wondering if there will be a big pile of "Surprise!" in front of their office doors.

Well, I'm going to assume that Professor Althouse's earlier observations are still correct: that these protesters have been unusually diligent in cleaning up after themselves and keeping the place sanitary.

Assuming that's true, then the authorities could reasonably apply hygience as a viewpoint-neutral filter: "Yes, we let them sleep here, but no health codes were violated. You're violating health codes, so you have to leave."

And after a few incidents like that, they could reasonably say: "Because it's proving too difficult and costly to maintain the health codes, we will have to return to our original policies of enforcing building hours."

So such surprises might give them a viewpoint-neutral out from the situation eventually.

In Georgia we have our share of Veteran's memorials to courageous Wisconsin boys. A big one is at Chickamauga, and smaller ones are at Kennesaw Mountain and Andersonville marking where they fought and died.

Their willingness to answer the call is remembered and honored by your words today, Traditional Guy, brought to print by the presence of physical memorials which to this day stand as enduring reminders of courage and sacrifice.

Fred Phelps and his Westboro Baptist Church are probably making their plans right now. Will be interesting to see all those currently supporting the occupation of the State House in the name of free expression uphold the same principle on behalf of Phelps & Co. Or not.

From the earlier thread, here is what I wrote in response to comments like Mutaman's @ 2:49pm:

"I find it odd that so many people deem it important and/or necessary to denigrate Meade's employment. It occurs to me that a homeless person trying to stop the defacement of the Lincoln Memorial in DC would be in the right. The employment status or living quarters of the person stopping a wrong doesn't matter.

"Thus, I am left to conclude such personal attacks are scurrilous attempts to change the subject. And the practitioners of such are involved in the politics of personal destruction.

"Either that or those involved in such attacks are the bourgeoisie who wish the proles leave them be. But then I'm not a Marxist so I don't understand such class-based personal attacks. I'm more prone to evaluate the content of a person's character than anything else.

"I wish it were so for the many of you who find such personal assaults useful."

The governor would be making a big mistake to send anyone in to clear out the capitol protesters. Someone would start swinging clubs. A protester would end up with a cracked skull or a miscarriage and then that would become the protesters' new issue.

Right now they don't have one. Leave them alone while the state conducts all its other business. Presumably someone will have to come home eventually.

If not there must be a remedy in the courts to expel legislators who refuse to show up for work and thereby halt the state's business.

Since I first saw pictures of the protesters in the capital rotunda I've been surprised they were allowing that to go on. That's a working government building and as far as I know they don't have a right to be in there. All they need(ed) to do is lock the place up.

Of course now they can't do anything about it and they'll have to wait for them to leave. Might get pretty smelly in there waiting for that though.

I can't recall that sort of thing ever going on in Washington DC. They could get their message out protesting outside.

From the looks of it, most of the remaining "protesters" are either activists volunteering for the cause, or getting paid a pittance by the agitator groups or by the union itself. Remember, unions ignore pay scale entirely when it comes to their own hired goons.

In either event, what you have is a group of people getting paid nothing or next to nothing, to protect the economic self interests of one of the most well-off sectors of the population. If they weren't mostly unemployed and unemployable beats in the first place, they wouldn't be able to afford the time. Not the sharpest tools in the toolbox, are they.

As others have said, probably best to leave them alone until they all get bored and go back to mom & dad's.

Honestly, protests, like trolls, make their mark by being noticed, by being opposed, by making people respond.

No one caring is the worst thing in the world. Being ignored and moving on undermines both trolls and protests. Because they don't really have any power except to annoy. Sure, they may take over a space, but there are other spaces to press on with the business at hand.

The more they are noticed, like with the Capitol building, they more they will continue to do it. Let it exhaust itself, and people just won't bother to do it anymore.

Fact: President Obama is the boss of a civil work force that numbers up to two million (excluding postal workers and uniformed military). Fact: Those federal workers cannot bargain for wages or benefits. Fact: Washington, D.C. is, in the purest sense, a "right to work zone." Federal employees are not compelled to join a union, nor to pay union dues. Fact: Neither Mr. Obama, nor the prior Democratic majority, ever acted to give their union chums a better federal deal.

Who, exactly, is controlling access to the Capitol? Are potential entrants vetted somehow? I see signs of support in the Capitol from outside the state—Baltimore, Michigan—who let those people in? Another embarrassingly obvious observation/question: Jesse Jackson can just stroll in, whenever?

Charlie Martin said...Well, plus, the majority of the demonstrators have been involved with public employee unions for obvious reasons, and have included police and firefighters.

So, who is going to throw them out? Sending in the national guard seems counterproductive.

So who will evict the guardians?

===================Part of the problem is setting up one sector of government employees as special and operating under different rules than others because they are "heroes", or "the Guardians of the public they bleed for money".

Walker himself pandered to "The Heroes" by saying they were exempt from the sacrifices he was trying to ram up the asses of other entitled government workers - for the public good in both cases.

First, cops and firefighters are no more "special" than trash collectors, sewer plant operators, teachers, corrections guards, or state-paid lawyers or healthcare workers. All serve a function.

Second, when wholesale replacement of "heroes" is necessary - air traffic controllers, 9/11 100% disability rewarded firefighters and cops, the NOLA cops who deserted - we find that replacement waiting lists are long and the spots readily filled.

Third, guardians who do not follow orders of the executive are worthless and should be fired after warning given to resume duties is unheeded. The public backs that play.

Although, to be honest I now have a new joy in my life: the work I do will, in the next year, hopefully eliminate repitition and duplication of effort - and many of those who go will be union. I had felt badly that it could work out that way, but screw it. Bunch of whi y spoiled children. Not only will I save taxpayers a lot of money, I get to do it this way.

I think the state is missing a revenue opportunity. If they've gone home for the weekend, when they come back on Monday, declare the Capitol building a state park and start charging camping fees. They charge $60/night for using the cabins at Point Beach. That would be a good starting point for negotiations.

I don't know if it is viewpoint discrimination but it was insane to allow it. It is great to demonstrate outside the Capitol building but not within.

It could have easily gotten violent, it was an evacuation problem, it was super noisy for those working there, it was intimidating for those working there, it provides opportunities/cover for vandalism and theft, unnecessarily increased liability for the state, and likely has accelerated wear and tear on the facilities.

The simple rule is to keep demonstrations outside.

I also do tours of our Capitol building (except ours is in Austin, Texas) because it is a beautiful old building, a piece of history and art.

The trouble is that by temperament and generic character defects, the union crowd is predisposed to be a bunch of slackers and layabouts who can naturally outlast their earnest GOP opponents simply by being who they are, shiftless whining whimperers without any goals in life except ripping off the Man.

And the slacker fleebaggers in Rockford or Harvey are content to wait it out---nothing better to do for career politicians. If they were Republicans, they'd have businesses to run, families to raise---but lying around on couches seems the Demonrat default mode, so they're happier than pigs in $hit.

I suspect the legal theory is an old document that includes something about "the right of the people to peaceably assemble and to petition the Government for a redress of grievances? Nothing about such rights being terminated at bedtime, oddly enough.

I was there on Friday. I marched in with my group, and then went to see my Senator. I ended up having a very civil chat with one of her aides. Then I left (against a stream of incoming firefighters also there to demonstrate.)

One would think, from some of the stuff out there, that the Capitol has been turned into a garbage tip. It was far from that. People still working there (and the Senate still in session), no problem getting in and out, an appropriate amount of security, and no garbage piling up. I was proud to be part of it all.

Maybe if you got out and protested too instead of envying public workers for having a living wage and retirement security, you would have it too. Don't blame them because they don't want to lose the benefits that have been stolen from the rest of working America.

"...what will happen when the next protester comes along and the next and the next? Hasn't the state opened the Capitol as a free speech forum in which viewpoint discrimination will be forbidden under the First Amendment?"

Will the state have to give thousands of openly packing Patriot Warriors the same permissions it's giving to this one? Magic 8-Ball says "NO" - being the authorities that administer them, they can use ancient occult systems like "discretion" or "common sense" in order to give or withhold permission/s at their pleasure.

The trope of Walker discriminating in favor of people defending unions & public works is irony pay-dirt: he blew smoke about siccing the National Guard on anyone who dared to defy his will & rightly got his back slammed into a brick wall for it. Using the police to physically evict such a massive crowd would be both a logistically parlous move per se, & political cyanide.

Walker has already tried this exact political judo before, & it cost his previous employer a fortune to pay for the damage he did while failing at it. That this massive response didn't get Walker to relent in short order is brute testimony to the extent to which America's middle-class has gone from powerhouse to Milhouse.

As non-violent direct actions go, the protest in Wisconsin has been quite a phenomenon, but although it appears impressive, I doubt signs & chanting alone will revoke the noxious measures they are protesting. They will either have to diversify their action menu or dissolve as Walker waits them out.

The question is: who are those people in the Capitol? I'd like to see some reporting on that! Do you know? Are they from Wisconsin? Are they radical politicos? Are they UW students and TAs?

I am a grad student TA (really a PA but it is the same union) as well as a part-time instructor at MATC (also union).

There are a large group of grad students who have created a rotating series of protesters. There is a core group who stay overnight and they switch off to shower, go to classes, etc. They have also enlisted the help of locals who are always up for a hearty rendition of "Hey Hey, Ho Ho". Generally these are the leftover 60s and 70s protesters. There are also some low-paid union representatives who are there to keep generating the excitement of protesting.

The biggest thing I have seen with most of the protesters is that sense of being part of something 'Big'. It seems to me that these younger liberals/progressives are just waiting for a 'cause' to show how powerful their voice can be - almost to show how worthy they are in comparison to earlier generations' protesters.

BTW - I may belong to the TA and MATC unions but I am no PUBLIC sector union-lover. I pay my dues because I have to, but I resent every single penny taken from me.

Just a little FYI - the Collective Bargaining Agreement that was legislated into law can be legislated out. THIS is why, if we are smart, we do not allow any government to confer rights onto groups or individuals. To do so means they can be revoked.